A v B

This is an appeal, with permission granted by the judge below, against the decision of Collins J given in the Administrative Court on 4 July 2008 to the effect that the Administrative Court possesses jurisdiction to hear the respondent’s claim against the appellant alleging a violation of Article 10 of the European Convention on Human Rights (ECHR). I will refer to the respondent as the claimant.

The claimant is a former member of the Security Service. He has written and desires to publish a manuscript which, as Collins J put it, “contains inter alia a description of his work for the Service”. Bound as he is by a strict duty of confidentiality, he may not publish such material without the authority of the appellant (defendant in the proceedings), who is the Director of Establishments of the Security Service and to whom I will refer as the Director.

The claimant applied for the Director’s consent to publish, which was refused. Thereafter on 13 November 2007 the claimant lodged an application in the Administrative Court for permission to bring judicial review proceedings to challenge the Director’s refusal of consent. He claimed that the refusal violated his right of free expression guaranteed by ECHR Article 10, and was unreasonable and vitiated by bias. On the same day, 13 November 2007, Collins J gave directions including orders to protect the identities of the claimant and the proposed defendant (there is however no difficulty in the way of naming the defendant/appellant, by reference to his office: so much was done in Collins J’s substantive judgment now under appeal). On being served with the proceedings the Director asserted that the Administrative Court had no jurisdiction to entertain the claim of violation of ECHR rights. On 12 March 2008 Collins J granted judicial review permission and directed a preliminary hearing on the jurisdiction issue raised by the Director. On 15 June 2008 Collins J conducted the preliminary hearing, and his reserved judgment, by which he decided the jurisdiction issue in favour of the claimant, was delivered on 4 July 2008 and as I have indicated is now the subject of this appeal.

The Director’s contention is that by force of s.65(2)(a) of the Regulation of Investigatory Powers Act 2000 (RIPA), to which I will come directly, the only judicial entity having jurisdiction to entertain the Article 10 claim is the Investigatory Powers Tribunal (the IPT), which was established by RIPA s.65(1). The High Court and thus the Administrative Court therefore has none.

I should first set out the following provisions of the RIPA.

“65The Tribunal

(1)

There shall, for the purpose of exercising the jurisdiction conferred on them by this section, be a tribunal consisting of such number of members as Her Majesty may by Letters Patent appoint.

(2)

The jurisdiction of the Tribunal shall be—

(a)

to be the only appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section;

(b)

to consider and determine any complaints made to them which, in accordance with subsection (4), are complaints for which the Tribunal is the appropriate forum;

...

(d)

to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provision made by the Secretary of State by order.

(3)

Proceedings fall within this subsection if—

(a)

they are proceedings against any of the intelligence services;

...

(4)

The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within subsection (5) which he believes—

(a)

to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunications service or telecommunication system; and

(b)

to have taken place in challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services.

(5)

Subject to subsection (6), conduct falls within this subsection if (whenever it occurred) it is—

(a)

conduct by or on behalf of any of the intelligence services;

…

66Orders allocating proceedings to the Tribunal

(1)

An order under section 65(2)(d) allocating proceedings to the Tribunal—

(a)

may provide for the Tribunal to exercise jurisdiction in relation to that matter to the exclusion of the jurisdiction of any court or tribunal; but

(b)

if it does so provide, must contain provision conferring a power on the Tribunal, in the circumstances provided for in the order, to remit the proceedings to the court or tribunal which would have had jurisdiction apart from the order.

67Exercise of the Tribunal’s jurisdiction

(1)

Subject to subsections (4) and (5), it shall be the duty of the Tribunal—

(a)

to hear and determine any proceedings brought before them by virtue of section 65(2)(a) or (d); and

(b)

to consider and determine any complaint or reference made to them by virtue of section 65(2)(b) or (c).

(2)

Where the Tribunal hear any proceedings by virtue of section 65(2)(a), they shall apply the same principles for making their determination in those proceedings as would be applied by a court on an application for judicial review.

68 Tribunal procedure

(1)

Subject to any rules made under section 69, the Tribunal shall be entitled to determine their own procedure in relation to any proceedings, complaint or reference brought before or made to them.

(2)

The Tribunal shall have power—

(a)

in connection with the investigation of any matter, or

(b)

otherwise for the purposes of the Tribunal’s consideration or determination of any matter,

to require a relevant Commissioner appearing to the Tribunal to have functions in relation to the matter in question to provide the Tribunal with all such assistance (including that Commissioner’s opinion as to any issue falling to be determined by the Tribunal) as the Tribunal think fit.

...

(4)

Where the Tribunal determine any proceedings, complaint or reference brought before or made to them, they shall give notice to the complainant which (subject to any rules made by virtue of section 69(2)(i)) shall be confined, as the case may be, to either—

(a)

a statement that they have made a determination in his favour; or

(b)

a statement that no determination has been made in his favour.

...

(6)

It shall be the duty of the persons specified in subsection (7) to disclose or provide to the Tribunal all such documents and information as the Tribunal may require for the purpose of enabling them—

(a)

to exercise the jurisdiction conferred on them by or under section 65; or

(b)

otherwise to exercise or perform any power or duty conferred or imposed on them by or under this Act.

(S.68(7) then sets out a list of persons. The first, at s.68(7)(a), is “every person holding office under the Crown”.) S.69 empowers the Secretary of State to make rules regulating the IPT’s exercise of its jurisdiction and other matters. Then s.70:

“70Abolition of jurisdiction in relation to complaints

(1)

The provisions set out in subsection (2) (which provide for the investigation etc. of certain complaints) shall not apply in relation to any complaint made after the coming into force of this section.

(2)

Those provisions are—

(a)

section 5 of, and Schedules 1 and 2 to, the Security Service Act 1989 (investigation of complaints about the Security Service made to the Tribunal established under that Act);

(b)

section 9 of, and Schedules 1 and 2 to, the Intelligence Services Act 1994 (investigation of complaints about the Secret Intelligence Service or GCHQ made to the Tribunal established under that Act); and

(c)

section 102 of, and Schedule 7 to, the Police Act 1997 (investigation of complaints made to the Surveillance Commissioners).”

I must next give some account of the Investigatory Powers Tribunal Rules 2000 (the Rules), made by the Secretary of State pursuant to RIPA s.69.

Paragraph 2 of the Rules defines “section 7 proceedings” as “proceedings under section 7(1)(a) of the Human Rights Act 1998 in relation to which the Tribunal is the only appropriate tribunal by virtue of section 65(2)(a) of the Act”. By paragraph 3, the Rules are applied to section 7 proceedings. There follows a series of provisions elaborating special procedures clearly fashioned to accommodate the particular considerations, not least those of national security, which are likely to arise in such proceedings. Notable among them is paragraph 6, headed “Disclosure of information”, part of which is in these terms:

“(1)

The Tribunal [sc. the IPT] shall carry out their functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services.

(2)

Without prejudice to this general duty, but subject to paragraphs (3) and (4), the Tribunal may not disclose to the complainant or to any other person:

(a)

the fact that the Tribunal have held, or propose to hold, an oral hearing under rule 9(4);

(b)

any information or document disclosed or provided to the Tribunal in the course of that hearing, or the identity of any witness at that hearing;

(c)

any information or document otherwise disclosed or provided to the Tribunal by any person pursuant to section 68(6) of the Act (or provided voluntarily by a person specified in section 68(7));

(d)

any information or opinion provided to the Tribunal by a Commissioner pursuant to section 68(2) of the Act;

(e) the fact that any information, document, identity or opinion has been disclosed or provided in the circumstances mentioned in sub-paragraphs (b) to (d).

(3)

The Tribunal may disclose anything described in paragraph (2) with the consent of:

(a)

in the case of sub-paragraph (a), the person required to attend the hearing;

(b)

in the case of sub-paragraphs (b) and (c), the witness in question or the person who disclosed or provided the information or document;

(c)

in the case of sub-paragraph (d), the Commissioner in question and, to the extent that the information or opinion includes information provided to the Commissioner by another person, that other person;

(d)

in the case of sub-paragraph (e), the person whose consent is required under this rule for disclosure of the information, document or opinion in question.

(4)

The Tribunal may also disclose anything described in paragraph (2) as part of the information provided to the complainant under rule 13(2), subject to the restrictions contained in rule 13(4) and (5).”

I should refer also to paragraphs 9 and 13 of the Rules. Paragraph 9 is headed “Forms of hearing and consideration”. It provides:

“(1)

The Tribunal’s power to determine their own procedure in relation to section 7 proceedings and complaints shall be subject to this rule.

(2)

The Tribunal shall be under no duty to hold oral hearings, but they may do so in accordance with this rule (and not otherwise).

(3) The Tribunal may hold, at any stage of their consideration, oral hearings at which the complainant may make representations, give evidence and call witnesses.

(4)

The Tribunal may hold separate oral hearings which:

(a)

the person whose conduct is the subject of the complaint,

(b) the public authority against which the section 7 proceedings are brought, or

(c)

any other person specified in section 68(7) of the Act,

may be required to attend and at which that person or authority may make representations, give evidence and call witnesses.

(5)

Within a period notified by the Tribunal for the purpose of this rule, the complainant, person or authority in question must inform the Tribunal of any witnesses he or it intends to call; and no other witnesses may be called without the leave of the Tribunal.

(6) The Tribunal’s proceedings, including any oral hearings, shall be conducted in private.”

Paragraph 13 is headed “Notification to the complainant”. It provides:

“(1)

In addition to any statement under section 68(4) of the Act, the Tribunal shall provide information to the complainant in accordance with this rule.

(2)

Where they make a determination in favour of the complainant, the Tribunal shall provide him with a summary of that determination including any findings of fact.

(3)

Where they make a determination:

(a)

that the bringing of the section 7 proceedings or the making of the complaint is frivolous or vexatious;

(b)

that the section 7 proceedings have been brought, or the complaint made, out of time and that the time limit should not be extended; or

(c)

that the complainant does not have the right to bring the section 7 proceedings or make the complaint;

the Tribunal shall notify the complainant of that fact.

(4)

The duty to provide information under this rule is in all cases subject to the general duty imposed on the Tribunal by rule 6(1).

(5)

No information may be provided under this rule whose disclosure would be restricted under rule 6(2) unless the person whose consent would be needed for disclosure under that rule has been given the opportunity to make representations to the Tribunal.”

In Applications Nos. IPT/01/62 and IPT/01/77 (23 January 2003) the IPT held that paragraph 9(6) of the Rules, requiring the Tribunal’s proceedings to be conducted in private, was ultra vires RIPA s.69 as being incompatible with ECHR Article 6 which guarantees the right to a fair hearing before an independent and impartial tribunal; but (paragraph 12 of the decision) “in all other respects the Rules are valid and binding on the Tribunal and are compatible with Articles 6, 8 and 10 of the [ECHR]”.

Before passing to other statutory materials I should add that by force of RIPA Schedule 3 Paragraph 2 the President of the IPT is required to be someone who holds or has held high judicial office. Other members must have held a relevant legal qualification for at least 10 years. At the present time the President of the IPT is Mummery LJ and the vice-president is Burton J.

I turn to the Human Rights Act 1998 (HRA). S.6(1) provides:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

S.7 provides:

“7Proceedings

(1)

A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—

(a)

bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b)

rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

(2)

In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.

(3)

If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.”

Lastly, CPR 7.11:

“(1)

A claim under section 7(1)(a) of the Human Rights Act 1998 in respect of a judicial act may be brought only in the High Court.

(2)

Any other claim under section 7(1)(a) of that Act may be brought in any court.”

HRA ss.6 and 7, CPR 7.11, and RIPA ss.65(1), (2)(a), (b) and (3)(a), 67(1) (as it relates to s.65(2)(a) and (b)), and 70, all came into force on 2 October 2000. S.66 RIPA is to come into force on a day to be appointed. The Rules also came into force on 2 October 2000. Subordinate instruments are not ordinarily a legitimate aid to the construction of primary legislation; however to the extent that the Rules may be regarded as part and parcel of the same legislative scheme as is constituted by material provisions of the HRA, RIPA and CPR, I think we can consider what light they throw on the issue falling for decision.

The Director’s case as it was advanced before Collins J is very straightforward. The claimant’s claim pursuant to Article 10 is beyond doubt a claim within the meaning of HRA s.7(1)(a). It is therefore, by that provision, assigned exclusively to the “appropriate court or tribunal”. Ordinarily, unless the claim is in respect of a judicial act, the “appropriate court or tribunal” is by force of CPR 7.11 “any court”. But where the claim (being within s.7(1)(a)) is brought “against any of the intelligence services” (RIPA s.65(3)(a)), the “appropriate court or tribunal” is by force of RIPA s.65(2)(a) the IPT. This claim is brought against the Security Service, which is one of the intelligence services as defined by RIPA s.81 – the others are the Secret Intelligence Service and GCHQ. Accordingly the IPT is the “appropriate court or tribunal” and the High Court has no jurisdiction in the matter. Moreover it is not a question, so it is submitted, of the High Court’s jurisdiction being ousted. The HRA both created the Convention rights and by the same legislative act assigned their adjudication to the appropriate court or tribunal – in this case the IPT. The High Court never possessed any jurisdiction to be ousted. As I have said, the material provisions of the HRA and RIPA (and the CPR) all came into effect together, on 2 October 2000.

Mr Millar QC for the claimant seeks to advance a new point, not raised before Collins J, and I will come to that separately. The Claimant’s argument advanced before Collins J and accepted by him was and is to the following effect. HRA s.7(2) defines “the appropriate court or tribunal” as such court or tribunal as is determined by rules. On the face of it, by CPR 7.11(2), the court or tribunal for the purposes of the claimant’s Article 10 claim is, simply, “any court”, which manifestly includes the Administrative Court. As for RIPA s.65(2)(a), it is submitted that it is highly significant that the opening words are “to be the only appropriate tribunal” – not “… court or tribunal”, which is the expression appearing in s.66(1). This use of language shows that s.65(2)(a) does not touch the jurisdiction of any court properly so called. It merely assigns to the IPT a class of case which would otherwise have been heard by another tribunal.

Mr Millar submits that the effect of this proposition for the purpose of the present case is as follows. Specialist tribunals had been respectively established under the Security Service Act 1989 (which put the Security Service on a statutory footing) and the Intelligence Services Act 1994 (which put the Secret Intelligence Service and GCHQ on a statutory footing) in order to deal with complaints by persons aggrieved by anything they thought had been done by the relevant intelligence service in relation to them or their property. By RIPA s.70 the jurisdiction of those tribunals was abolished in relation to complaints arising after 2 October 2000. But the tribunals continue to exist and exercise jurisdiction in relation to complaints made before 2 October 2000. In light of this Mr Millar’s argument is that the scope and purpose of s.65(2)(a) is to provide that claims which before 2 October 2000 would have been entertained in the earlier specialist tribunals must now, so far as they assert a violation of Convention rights, be brought before the IPT. But his client’s Article 10 claim has been properly brought as an autonomous action in the Administrative Court; that court is therefore the “appropriate court [or tribunal]” by force of CPR 7.11; s.65(2)(a) is not engaged.

In my judgment (leaving aside for the present Mr Millar’s new point) the Director’s argument is correct, and the judge below was wrong to reject it.

First, RIPA s.65(2)(a) refers to “any proceedings under [s.7(1)(a)]” (my emphasis). The expression is unqualified. It plainly includes, on the face of it, proceedings such as these present proceedings. There is nothing to show that its scope is in some way limited by reference to the jurisdiction of the tribunals established under the Act of 1989 and 1994 or the jurisdiction of any other tribunals. The use in s.65(2)(a) of the term “tribunal” (in contrast to “court or tribunal” in s.66(1)) is in my view unsurprising and readily explained. The reference in s.66(1)(a) and (b) is to a court or a tribunal, as it were as the case may be: the subject-matter of the provision is a future order, as regards which the legislator cannot know whether it will refer to a court or to a tribunal. By contrast s.65(2)(a) is enacted only in the context of the jurisdiction of the IPT already assigned by that subsection: and the IPT is, of course, a tribunal and not a court.

Secondly, the proposition that the scope of s.65(2)(a) is thus limited produces, in my view, wholly eccentric results. A complaint arising after 2 October 2000 which would, had it arisen before that date, have been dealt with by one of the earlier tribunals is now on the face of it assigned to the IPT by force of s.65(2)(b) and (4). “Complaint” is a term of art in s.65, denoting a procedurally distinct form of claim. However the scope of such a complaint, which is given by s.65(4) and (5), is plainly wide enough to include an allegation “that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1)” (HRA s.7(1)). Thus the effect of Mr Millar’s argument is that if such a complaint indeed includes a claim to which HRA s.7(1)(a) applies it is assigned to the IPT not under s.65(2)(b), but under s.65(2)(a) – but by virtue only of the fact that it is a s.7(1)(a) claim. Yet any other s.7(1)(a) claim brought in court proceedings (such as the claimant’s judicial review application in this case), not being within s.65(2)(b) and (4), is by contrast not assigned to the IPT at all. So some s.7(1)(a) claims go to the IPT under section 65(2)(a) and others do not; yet the ones that do are in fact already there by force of section 65(2)(b).

There was some discussion in the course of argument as to the position relating to employment tribunals. Collins J referred to this at paragraph 14 of his judgment:

“[T]he words used in s.65(2)(a) make sense if it is intended to exclude the jurisdiction of any other tribunal which might have jurisdiction in particular circumstances, for example, an employment tribunal.”

It is clear that Crown servants whose work is or was in one of the intelligence services may bring proceedings in the employment tribunal. The Employment Tribunals (Constitution & Rules etc) Regulations 2004 contain special procedural provisions for the protection of national security where that falls for consideration: see paragraph 54 and Schedule 2. But these circumstances, in my judgment, offer no material assistance to Mr Millar. If an employment claim against one of the intelligence services were to involve an allegation falling within HRA s.7(1), then, certainly, it would have to be brought in the IPT by force of RIPA s.65(2)(a). But that of course is only because all claims against the intelligence services involving such an allegation must be brought in the IPT. I can see that, without the possibility of employment claims being diverted to the IPT by force of RIPA s.65(2)(a), on Mr Millar’s argument the only claims so diverted would be claims already assigned to the IPT by s.65(2)(b) – for the reasons I have given in paragraph 19; and therefore the possibility of employment claims being so diverted at least gives some content to s.65(2)(a) beyond claims which are, in truth, already assigned to the IPT by s.65(2)(b). That may soften the gross anomaly which Mr Millar’s case produces; but it is a case that remains wholly eccentric.

As I have indicated (paragraph 19) Mr Millar’s argument is anomalous in two respects. (1) It effectively deprives s.65(2)(a) of independent content – subject to the possible inclusion of some employment claims. (2) It means that some, but not all, s.7(1)(a) claims against the intelligence services are assigned to the IPT: and whereas there is logic in assigning all, or none, there is no logic whatever in assigning only some. That position is, I think, fortified by the content of the Rules. The provisions of paragraphs 6, 9 and 13 which I have set out are apt to regulate any s.7(1)(a) proceedings against the intelligence services involving secure or sensitive information. Mr Millar’s argument means that some such proceedings are covered by those procedures and others are not. That cannot have been the legislative intention.

In the course of his submissions Mr Millar did not seek to make very great play of any suggestion that on the Director’s argument the High Court’s jurisdiction is ousted by RIPA s.65(2)(a) – a possibility to which I referred in passing in describing the Director’s case. He was I think right not to do so. It is elementary that any attempt to oust altogether the High Court’s supervisory jurisdiction over public authorities is repugnant to the constitution. But statutory measures which confide the jurisdiction to a judicial body of like standing and authority to that of the High Court, but which operates subject to special procedures apt for the subject-matter in hand, may well be constitutionally inoffensive. The IPT, whose membership I have described, offers with respect no cause for concern on this score. And as I have noted the Rules have been held by the IPT to be Convention compliant save for paragraph 9(6) which has accordingly fallen away.

Lastly on this part of the case, Mr Millar has placed much reliance on the decision of their Lordships’ House in the case of Shayler [2003] 1 AC 247. The House held in that case that a prosecution under the Official Secrets Act of a former member of the Security Service in respect of disclosures made by him in an unauthorised publication did not violate his Article 10 rights, because he could have had recourse to judicial review to challenge any refusal of permission to publish (a recourse of which he had not sought to take advantage). There are indeed very clear references to the availability of judicial review, and its importance in context for the vindication of the Convention right, in their Lordships’ opinions in Shayler. But the facts of the case happened in 1997 when the IPT did not exist and the RIPA was not on the statute book. It is true that by the time the case went before their Lordships the new regime under the RIPA was in place; but no argument was addressed to their Lordships as to the possibility of any recourse to the IPT as opposed to judicial review at the hands of a person refused permission to publish. With great respect I do not consider, in those circumstances, that we may obtain any definitive guidance from Shayler.

With the court’s permission granted at the hearing on 24 November 2008, Mr Millar raises a new point for the claimant. He submits that notwithstanding the fact that the Director is named as defendant to the claim, the proceedings are in substance brought against the Crown, and therefore are not “proceedings against any of the intelligence services” within the meaning of RIPA s.65(3)(a). So s.65(2)(a) is not engaged, and the Administrative Court is and remains “the appropriate court or tribunal” for the purposes of HRA s.7.

Mr Millar submits that employees of the intelligence services are civil servants, who owe strict duties of confidence to the Crown. He referred to the current Civil Service Order in Council (1995); but the reference is misplaced, because that instrument applies to the Home Civil Service of which the Security Service is no part. However Mr Millar is right to submit that the general law now recognises that civil servants enter into legal relations with the Crown in the form of contracts of employment: Nangle [1991] ICR 743. In light of this it is said that the enhanced duty of confidence owed by members of the intelligence services is distinctly owed to the Crown, and so much is demonstrated by dicta in the “Spycatcher” litigation. Among other passages Mr Millar referred to the judgment at first instance of Scott J as he then was: Attorney General v. Guardian Newspapers [1990] 1 AC 109 at 154, Sir John Donaldson MR at 179 and Bingham LJ as he then was at 213 in the Court of Appeal, and Lord Keith of Kinkel at 256 in the House of Lords. Furthermore the relation between civil servants and the Crown is well exemplified, so it is submitted, by the document known as the Armstrong Memorandum (prepared by the then Secretary to the Cabinet, Sir Robert Armstrong, in 1985).

In consequence, submits Mr Millar, despite the form of these proceedings in which the Director is named as defendant, the proceedings are in substance and in fact directed against the Crown as the claimant’s former employer and the party to whom he owed and owes a duty of confidence. The proceedings are not, therefore, proceedings against any of the “intelligence services” within the meaning of RIPA s.65(3)(a).

There is at once an obvious question: on this argument, what is the scope or content of the phrase “proceedings against any of the intelligence services” within RIPA s.65(3)(a)? The claimant’s answer is that proceedings against the Security Service, for the purposes of s.65, are only proceedings relating to the exercise of specific statutory functions assigned to the Service; and the giving or withholding of consent to the publication of a previous employee’s memoirs is not such a statutory function.

I cannot accept this submission. It proves too much. All the functions of the Security Service are, and have been since the coming into force of the Security Service Act 1989, statutory functions. S.1 of that Act provides in part:

“(2)

The function of the Service shall be the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means.

(3)

It shall also be the function of the Service to safeguard the economic well-being of the United Kingdom against threats posed by the actions or intentions of persons outside the British Islands.”

S.2(2)(a) provides:

“The Director-General shall be responsible for the efficiency of the Service and it shall be his duty to ensure—

(a)

that there are arrangements for securing that no information is obtained by the Service except so far as necessary for the proper discharge of its functions or disclosed by it except so far as necessary for that purpose or for the purpose of preventing or detecting serious crime...”

The giving or withholding of consent to a proposed publication written by a former member of the Service is in my judgment incidental to these functions. Accordingly, the claimant’s submission on this new argument leads to the conclusion that “proceedings against any of the intelligence services” in s.65(3)(a) – certainly so far as the phrase relates to the Security Service, and I can discern no distinction for this purpose between that Service and the other intelligence services – is an empty category. But the statute cannot be construed so as to provide for such a result.

Mr Havers QC for the appellant accepts that the Security Service is an emanation of the Crown, having no legal personality of its own. It was not clothed in legal personality by the Security Service Act 1989. Its functions were merely thereby placed, as I have said, “on a statutory footing”. All the intelligence services are emanations of the Crown. None has individual legal personality. It follows, as it seems to me, that the expression in RIPA s.65(3)(a) “intelligence services” cannot be intended to refer to bodies having distinct legal personalities of their own, for in that case it would have no content at all. It can only be intended to refer to what are admittedly emanations of the Crown. Accordingly, the fact that the Crown is the legal personality standing as it were behind the Security Service does not take the Security Service out of section 65(3)(a), nor therefore out of section 65(2)(a).

Mr Havers also pointed to documentation annexed to a witness statement produced by his instructing solicitor showing that the contractual arrangements into which the claimant entered with the Crown imposed obligations specifically owed to the Security Service, and made express provision for the procedures to be followed where a previous member of the Service desires to publish a memoir. While these materials cannot affect the legal identity of the party with whom the claimant contracted – the Crown – they demonstrate, as Mr Havers submits, that the Director is appropriately named as defendant in the proceedings.

For all these reasons I would allow the Director’s appeal, set aside the orders made by Collins J on 4 July 2008, and declare that the Administrative Court has no jurisdiction to entertain the Article 10 claim. I should recall, however, that the claim includes other elements: accusations that the Director’s refusal of permission to publish was unreasonable and vitiated by bias. Mr Havers submits that the claimant should reformulate these aspects so as to constitute a complaint assigned to the IPT under RIPA s.65(2)(b), so that the whole of the claimant’s case will go before the IPT. If the claimant declines to take that course, Mr Havers submits that the Administrative Court should as a matter of discretion refuse to entertain those parts of his case on the footing that he would not have exhausted prior remedies. That seems to me plainly to be right; but as at present advised I do not think we should pre-empt the Administrative Court’s own decision on the matter.

I am attracted by the pragmatic solution put forward by Dyson LJ which gives ultimately overriding effect to the absence of detailed rules of court to govern court proceedings which would have to deal with claims against the intelligence services. The purpose of such rules is to deal with the strong public interest in support of the protection of national security in the context of disputes concerning the intelligence services. The absence of detailed rules of court can be contrasted with the enactment of specialised rules for the purposes of cases not only before the IPT but also in employment tribunals (see the Employment Tribunals (Constitution & Rules etc) Regulations 2004. There is also force in the point, acknowledged by the judge and relied on by Dyson LJ, that the IPT is clearly the appropriate forum in which matters relating to surveillance and other like matters should be addressed (see paragraph 57 below).

Nevertheless, I have been unable to persuade myself that the language of sections 65 and 66 permit this conclusion. We are called upon to interpret the phrase “the only appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998” found in section 65(2)(a) of RIPA. The Director submits that this amounts to an exclusion of the jurisdiction of the courts in relation to any proceedings under section 7(1)(a) of HRA. However, the phrase in question does not refer to the court(s) at all. It is common ground that there is another tribunal before which, but for section 65(2)(a), a claim that a public authority (such as the intelligence services) has acted in a way made unlawful by section 6(1) of HRA might have been brought by way of section 7 proceedings, and that is the employment tribunal. Therefore, section 65(2)(a) has content as referring to the IPT as “the only appropriate tribunal”. If that phrase is intended to be an exclusion of the courts, then the exclusion is implicit rather than express.

Section 7(2) of HRA provides:

“(2)

In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as may be determined in accordance with rules”.

CPR 7.11 provides that claims in respect of judicial acts must be brought in the High Court but –

“Any other claim under section 7(1)(a) of that Act may be brought in any court.”

Thus, subject to the phrase in question in section 65(2)(a) of RIPA, section 7 proceedings against a public authority may be brought in any court.

What light if any is thrown on the phrase “the only appropriate tribunal” by other parts of sections 65 and 66 of RIPA? The following passages appear to me to be relevant:

The following questions arise. Why, if the jurisdiction of the courts is excluded, does section 65(2)(a) speak of “the only appropriate tribunal” rather than of “the only appropriate forum” (to adopt the phraseology of section 65(2)(b) and section 65(4)? Or why does it not adopt the phraseology of section 66(1)(a) and speak in terms of “the exclusion of the jurisdiction of any court or tribunal”? Why does section 65(2)(b) and section 65(4) speak of the IPT as “the appropriate forum”?

There are no really satisfactory answers to any of these questions. It is true that section 7 of HRA speaks of “the appropriate court or tribunal”, which is language which no doubt section 65 is intended to reflect, and also true that the IPT is not a court, so that the language “the only appropriate court or tribunal” would be somewhat strange. However, strange or not, it would remain accurate, if it was intended to deny section 7 jurisdiction to any court or tribunal other than the IPT, to say that the jurisdiction of the IPT “shall be – (a) to be the only appropriate court or tribunal for the purposes of section 7…”. That would have the virtue of tracking the language of section 7 precisely. If, however, it was felt to be unnatural to speak in terms “court or tribunal”, the word “forum” was at hand, in the phrase “appropriate forum”, to bridge both courts and tribunals. Moreover, it would also have been possible to use the phraseology of section 66(1)(a) and make it plain that the section 7 jurisdiction of the IPT was “to the exclusion of the jurisdiction of any court or tribunal”.

It is said that the language of exclusiveness is not required since what was happening as of 2 October 2000 was an allocation of a new HRA jurisdiction rather than of any re-allocation of an existing jurisdiction. However, I do not find the point very comforting. The fact is that CPR 7.11 allocates section 7 proceedings in general to the courts and if an exception is to be carved out of that, even by primary legislation such as RIPA, one is entitled to think that such an exception would be achieved plainly and expressly, and not uncertainly and by means of implication.

Similarly, I would be more attracted (than I already am) by Dyson LJ’s pragmatic solution with which I began if the effect of adopting it, and an imperative of adopting it, were to bring coherency to some overall scheme. However, I can find no such coherency in the provisions of RIPA. As Dyson LJ has shown, there is a distinction made between “proceedings” which are based on common law or statutory causes of actions (some of the latter of which can only be brought in tribunals such as employment tribunals) and “complaints”. The only “proceedings” against the intelligence services which are allocated under section 65 are section 7 proceedings. All other proceedings are not yet allocated (see section 65(2)(d)): if they were to be allocated, provision may or may not be made for the IPT to exercise jurisdiction to the exclusion of any court or tribunal. It would be understandable that proceedings or complaints which concerned subject matter of a particularly sensitive nature, such as surveillance, interception of communications, use of covert services and such like, should be assigned exclusively to the IPT, with its special rules, and removed entirely from all courts or other tribunals. That, however, is not the functional approach taken in section 65. If one asks what is so special about section 7 proceedings against the intelligence services as to require them, of all proceedings, to be assigned solely to the IPT to the exclusion not only of any other tribunal (such as the employment tribunal) but of the courts as well, there is no ready answer. Certainly none has been suggested.

In sum, attracted as I am by a pragmatic solution, I have been unable to derive one from the words of RIPA, or from any coherent purpose to be ascertained from its provisions. Therefore, albeit uneasily, I am forced back upon the judge’s, admittedly somewhat unsatisfactory, palliative, namely that it may remain possible for the administrative court to refuse relief in its discretion in suitable cases, on the basis that there would be an alternative remedy before the IPT. I comfort myself, however, with the thought that in R v. Shayler [2002] UKHL 11, [2003] 1 AC 247, although the present RIPA point was not in issue, their Lordships saw no particular difficulty in suggesting judicial review as a suitable means by which a former member of the security intelligence services could challenge a refusal of permission to publish. Nor was that a mere matter of passing comment: it was the ground upon which their Lordships demonstrated that the would-be author had a remedy in the courts whereby he could seek a ruling by way of judicial review that the interference with his right of freedom of expression was greater than could be justified on grounds of national security.

I would therefore dismiss this appeal. I agree, however, that there is nothing in the “new point”.

At first sight, there seems to be a good deal to be said in favour of the original case advanced by Mr Millar. First, RIPA does not assign all claims against any of the intelligence services exclusively to the IPT (which is subject to the rules and special procedures which apply to that tribunal by virtue of the Investigatory Powers Tribunal Rules 2000 (“the Rules”)). Even on the argument of Mr Havers QC, it is conceded that “complaints” falling within section 65(4) of RIPA can be “reformulated” as legal rights of action against an intelligence service (whether statutory claims or common law claims) and these can be issued in a relevant tribunal or in the courts. An example of such a complaint is a claim against an intelligence service which can be brought before the employment tribunal. As Laws LJ has pointed out, the Employment Tribunals (Constitution & Rules etc) Regulations 2004 contain special provisions for the protection of national security in relation to such claims. It might, therefore, be said that, when enacting RIPA, Parliament must be taken to have contemplated that a parallel jurisdiction would be enjoyed by the courts and tribunals other than the IPT and that special procedures would be established to deal with the national security problems raised by claims against an intelligence service in such tribunals and the courts.

Secondly, there are points to be made on the language of RIPA which, at first sight, might be said to lend support to the arguments of Mr Millar QC. The draftsman of section 65(2)(a) had the language of section 7(1)(a) of the Human Rights Act 1998 in mind and was well aware of the difference between a court and a tribunal. Mr Millar emphasises the contrast between “the appropriate court or tribunal” (section 7(1)(a)) and “court or tribunal” (section 66(2)(a) and (b)) on the one hand and “the only appropriate tribunal” (section 65(2)(a)) on the other hand. A further linguistic point that can be made is that the word “forum” is not used in section 65(2)(a). This can be contrasted with section 65(2)(b) and 65(4) which provide that the IPT is “the appropriate forum” for any complaints falling within subsection (4). Since the generic word “forum” was present to the mind of the draftsman, it may be said that, if he had intended the IPT to have exclusive jurisdiction to entertain claims under section 7 of the HRA, then he would have provided that the IPT was “the appropriate forum” in respect of such claims.

Despite these arguments, I agree with Laws LJ that the appeal should be allowed.

The judge was of the view that the Director’s construction required the jurisdiction of the court to be ousted. On well established principles, therefore, at [14] he identified the relevant question as being whether section 65(2) “contains sufficiently clear and explicit words to require a construction that the courts’ jurisdiction is ousted”. He found in favour of the claimant principally because there are no such clear and explicit words in section 65.

I agree with Laws LJ that this is the wrong approach. The creation of Convention rights under the HRA and the assignment of disputes about them to the appropriate court or tribunal were all part of the same legislative scheme which came into force on 2 October 2000. The courts did not previously have the jurisdiction to determine proceedings under the HRA. No question of ouster of jurisdiction can therefore arise.

In my judgment, it is the fact that the relevant provisions of RIPA, the HRA and the Rules were all enacted and came into force at the same time as part of a single legislative scheme which points the way to the resolution of this appeal.

Paragraph 3 of the Rules provides that the Rules “apply to section 7 proceedings and to complaints”. The Rules are detailed and elaborate. They are carefully drafted so as to achieve a balance between fairness to a complainant and the need to safeguard the relevant security interests. It seems to me to be inherently unlikely that Parliament intended to create an elaborate set of rules to govern proceedings against an intelligence service under section 7 of the HRA in the IPT and yet contemplated that such proceedings might be brought before the courts without any rules. If it had been intended to allow a claimant to issue section 7 proceedings against an intelligence service in the courts, surely Parliament would have provided that the Rules (adapted as necessary) should apply to the court proceedings. Having enacted such detailed procedural rules in this difficult and sensitive area for proceedings before the IPT, it would have been surprising if Parliament had intended to leave it to the courts to fashion their own rules. In this context, it is also not without significance that, as the Civil Procedure Rules demonstrate, Parliament routinely makes rules which govern court proceedings. They include rules which apply to proceedings in specialist courts.

In my judgment, the fact that the Rules apply to proceedings before the IPT and there are no corresponding rules in respect of section 7 proceedings against an intelligence service in the courts is a strong point in favour of the Director’s case. The question is whether the points identified at [42] and [43] above compel a different conclusion.

I do not consider that such a conclusion is required by the fact that the Rules govern “complaints” in respect of conduct falling within section 65(5) of RIPA and the possibility exists that some such complaints can be “reformulated” as other statutory or common law claims and the Rules do not apply to those claims. The fact that such “complaints” can be so “reformulated” does not mean that they are the same as such other claims. A claim cannot be entertained by the courts unless it is in respect of a right of action recognised by the common law or a statute which gives the courts jurisdiction to entertain it. Similarly, a claim cannot be entertained by a tribunal unless it is one which the tribunal has jurisdiction to entertain. All this is trite enough. But it is important to keep in mind that a “complaint” is not the same thing as a claim in respect of a right of action which is recognised by the common law or a statute. A “complaint” is no more than a complaint by a person who is “aggrieved” by any conduct falling within section 65(5) which he believes satisfies the conditions stated in section 65(4) and (4A). As regards RIPA, it is irrelevant whether the complaint fortuitously can be reformulated as a claim in respect of a right of action recognised by the common law or a statute (other than RIPA). RIPA does not purport to touch such other claims against an intelligence service. In my view, there is no significance in the fact that such other claims can be brought in the courts and other tribunals to which the Rules do not apply.

On the other hand, a section 7 claim against an intelligence service is just that: a section 7 claim. It cannot be “reformulated” as a different kind of claim. It is explicitly dealt with by RIPA.

As regards, the linguistic points to which I refer above, I accept that the draftsman well understood the difference between a court and a tribunal. But in view of the fact that the IPT is a tribunal, it is not surprising that section 65(2)(a) provides that the IPT is the only tribunal before which section 7 proceedings may be brought. It would be odd to designate the IPT as “the only appropriate court or tribunal”, because it is not a court. In the context of section 7(1), a court is different from a tribunal.

I also accept that in section 65(2)(a) the draftsman could have referred to the IPT as “the appropriate forum” as he did in section 65(2)(b) and (4) in relation to complaints. Had he done so, there would have been no scope for arguing that section 7 proceedings against an intelligence service could be brought before a court. It is not clear why the draftsman used the phrase “the appropriate forum” in section 65(2)(b) and (4). He could equally have used the phrase “the appropriate tribunal”. I doubt whether he used the word “forum” to make it clear that “complaints” must be brought before the IPT and cannot be brought before the courts. That is because it goes without saying that complaints by persons aggrieved by any conduct falling within subsection (5) cannot be brought before the courts qua complaints. Courts do not have jurisdiction to entertain “complaints” as such. They have jurisdiction to determine claims which are based on rights of action which are recognised or established by the common law or statute. Other tribunals have jurisdiction to decide the matters in accordance with the statutes which govern their powers. Thus, although it is not clear why the phrase “appropriate forum” is used in section 65(2)(b), I do not consider that the use of this phrase compels an interpretation of section 65(2)(a) which, for the reasons already given, is unlikely to have been intended by Parliament.

Mr Millar recognises the need to find content for his construction of section 65(2)(a), ie to identify other tribunals which, but for section 65(2)(a), would have had jurisdiction to deal with section 7 proceedings against an intelligence service. He points to the tribunals established under the Security Service Act 1989 and the Intelligence Services Act 1994 as being tribunals having such jurisdiction. He submits that, although the jurisdiction of these tribunals was abolished by section 70 of RIPA in relation to any complaint made after 2 October 2000, they continue to have jurisdiction in relation to complaints made before 2 October 2000. He submits that the words “the only appropriate tribunal” make it clear that the jurisdiction of the existing tribunals cannot be invoked in relation to complaints made after 2 October 2000 in respect of acts before that date.

But section 70(1) states that the provisions mentioned in subsection (2) “shall not apply in relation to any complaint made after [2 October 2000]”. I doubt whether section 70 has anything to do with section 7 proceedings at all. The draftsman drew a clear distinction between a “complaint” (section 65(2)(b) and (4)) and proceedings under section 7 (section 65(2)(a)). Section 70 relates to “any complaint made after the coming into force of this section” (emphasis added), ie not to section 7 proceedings. Moreover, I do not in any event see how section 7 proceedings could be brought before the tribunals established under the 1989 and 1994 Acts in respect of an act before 2 October 2000: section 7 did not come into force until that date. Further, the continuing existence and jurisdiction of these tribunals could not have been to enable them to deal with section 7 proceedings arising from complaints made after 2 October 2000 in respect of acts before that date. Section 70(1) explicitly states that the provisions set out in subsection (2) shall not apply to any complaint made after 2 October 2000, ie regardless of the date of the act of which complaint is made.

I do however accept that, although it was not the focus of Mr Millar’s submissions, the employment tribunal is another tribunal which, but for section 65(2)(a), would have had jurisdiction to deal with section 7 proceedings against an intelligence service.

There is a further reason why I prefer the Director’s construction. The judge acknowledged at [26] that claims involving matters in relation to surveillance, interception of communications and the use of material obtained thereby, the use of covert services, and the acquisition of means whereby protected electronic data can be decrypted should be dealt with by the IPT. He said at [26] that it was “difficult to envisage circumstances in which such claims could properly be dealt with by the court since Parliament has clearly indicated that the [IPT] should deal with them”. He went on to say that nothing that he had said should encourage anyone who is concerned that his rights have been infringed by any such matters to seek redress through the court rather than the IPT. The circumstances of the present case, however, “are somewhat different and, although the [IPT] undoubtedly has jurisdiction, its procedures are less satisfactory and the issues are wider than those for which RIPA specifically required it to be established”. He did not explain why its procedures are less satisfactory than those of the court. In considering whether the IPT is a satisfactory tribunal to determine issues that are wider than those for which RIPA required it to be established, the composition of the tribunal should not be overlooked: see [10] of Laws LJ’s judgment.

The judge said that a section 7 claim which, by reason of its subject-matter and the issues raised, is not suited for determination by the court could be dismissed or stayed on that ground. It may be that the Administrative Court could, in the exercise of its discretion, refuse relief in such a case. But it is by no means certain that the same can be said of the County Court. In any event, such a solution would introduce undesirable uncertainty and satellite litigation. I do not believe that this can have been intended by Parliament.

For these reasons, I would allow this appeal. I should add that I agree with what Laws LJ has said about the “new point” and have nothing to add.